contract

objective theory of contracts

A theory under which the intent to form a contract will be judged by outward, objective facts (what the party said when entering into the contract, how the party acted or appeared, and the circumstances surrounding the transaction) as interpreted by a reasonable person, rather than by the party's own secret, subjective intentions.

mirror image rule

promissory estoppel

A doctrine that applies when a promisor makes a clear and definite promise on which the promisee justifiably relies; such a promise is binding is justice will be better served by the enforcement of the promise.

estop

acceptance

mailbox rule

A rule providing that an acceptance of an offer becomes effective on dispatch (on being placed in an official mailbox), if mail is expressly or impliedly an authorized means of communication of acceptance of the offer.

consideration

covenant not to compete

A contractual promise of one party to refrain from conducting business similar to that of another party for a certain period of time and within a specified geographic area. Courts commonly enforce such covenants if they are reasonable in terms of time and geographic area and are part of, or supplemental to, a contract for the sale of a business.

unconscionable

A term used to describe a contract or clause that is void on the basis of public policy because one party, as a result of disproportionate bargaining power, is forced to accept terms that are unfairly burdensome and that unfairly benefit the dominant party.

crime

beyond a reasonable doubt

The standard of proof used in criminal cases. If there is any reasonable doubt that a criminal defendant committed the crime with which he or she has been charged, then the verdict must be "not guilty."

actus reus

mens rea

Mental state, or intent. A wrongful mental state is as necessary as a wrongful act to establish criminal liability. What constitutes a mental state varies according to the wrongful action. Thus, for murder, the mens rea is the intent to take a life.

robbery

The act of forcefully and unlawfully taking cash, personal property, or any other article of value from another. Force or intimidation is usually necessary for an act of theft to be considered robbery.

burglary

larceny

The wrongful taking and carrying away of another person's personal property with the intent to permanently deprive the owner of the property. Some states classify larceny as either grand or petit, depending on the property's value.

arson

The intentional burning of a building owned by another. Some statutes have expanded this to include and real property regardless of ownership and the destruction of property by other means - for example, by explosion.

duress

self-defense

The legally recognized privilege to protect oneself or one's property against injury by another. The privilege of self-defense usually applies only to acts that are reasonably necessary to protect oneself, one's property, or another person.

entrapment

In criminal law, a defense in which the defendant claims that he or she was induced by a public official - usually an undercover agent or police officer - to commit a crime that he or she would otherwise not have committed.

self-incrimination

The giving of testimony that may subject the testifier to criminal prosecution. The Fifth Amendment to the Constitution protects against self-incrimination by providing that no person "shall be compelled in any criminal case to be a witness against himself."

plea bargaining

The process by which a criminal defendant and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case, subject to court approval; usually involves the defendant's pleading guilty to a lesser offense in return for a lighter sentence.

double jeopardy

exclusionary rule

In criminal procedure, a rule under which any evidence that is obtained in violation of the accused's constitutional rights guaranteed by the Fourth, Fifth and Sixth Amendments, as well as any evidence derived from illegally obtained evidence, will not be admissible in court.

indictment

grand jury

A group of citizens called to decide, after hearing the state's evidence, whether a reasonable basis (probable cause) exists for believing that a crime has been committed and that a trial ought to be held.

product liability

unreasonably dangerous product

In product liability law, a product that is defective to the point of threatening a consumer's health and safety. A product will be considered unreasonably dangerous if it is dangerous beyond the expectation of the ordinary consumer or if a less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it.

market-share liability

Liability shared among all firms that manufactured and distributed a particular product during a certain period of time in proportion to the firms' respective shares of the market. Only some jurisdictions apply this theory and only when the true source of the harmful product is unidentifiable.

statute of repose

Basically, a statute of limitations that is not dependent on the happening of a cause of action. Statutes of repose generally begin to run at an earlier date and run for a longer period of time than statutes of limitations.

Federal form of government

Checks and balances

The principle under which the powers of the national government are divided among three separate branches - the executive, legislative, and judicial branches - each of which exercises a check on the actions of the others.

Police powers

Supremacy clause

The clause in Article VI of the Constitution that provides that the Constitution, laws, and treaties of the United States are "the supreme Law of the Land." Under this clause, state and local laws that directly conflict with federal law will be rendered invalid.

Meta tag

Establishment clause

The provision in the First Amendment to the Constitution that prohibits the government from establishing any state-sponsored religion or enacting any law that promotes religion or favors one religion over another.

Search warrant

Due process clause

The provisions in the 5th and 14th Amendments to the Constitution that guarantee that no person shall be deprived of life, liberty, or property without due process of law. Similar clauses are found in most state constitutions.

Equal protection clause

The provision in the 14th Amendment to the Constitution that guarantees that no state will "deny to any person within its jurisdiction the equal protection of the laws." This clause mandates that the state governments must treat similarly situated individuals in a similar manner.

Federal question

Diversity of Citizenship

Under Article III, Section 2, of the US Constitution, a basis for federal district court jurisdiction over a lawsuit between: Citizens of different states, A foreign country and citizens of a state or of different states or, Citizens of a state and citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before a federal district court can take jurisdiction in such cases.

Docket

Venue

Standing to sue

The requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. The plaintiff must demonstrate that he or she has been either injured or threatened with injury.

Complaint

Summons

A document informing a defendant that a legal action has been commenced against him or her and that the defendant must appear in court on a certain date to answer the plaintiff's complaint. The document is delivered by a sheriff or any other person so authorized.

Counterclaim

Reply

Motion to dismiss

A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed. Although the defendant normally is the party requesting a dismissal, either the plaintiff or the court can also make a motion to dismiss the case.

Motion for judgment on the pleadings

A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.

E-evidence

Voir dire

Old French phrase meaning "to speak the truth." In legal language, the phrase refers to the process in which the attorneys question prospective jurors to learn about their backgrounds, attitudes, biases, and other characteristics that may affect their ability to serve as impartial jurors.

Motion for a directed verdict

In a jury trial, a motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party who filed the motion on the ground that the other party has not produced sufficient evidence to support his or her claim.

Motion for judgment n.o.v.

Motion for a new trial

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice.

Brief

A formal legal document prepared by a party's attorney (in answer to the appellant's brief) and submitted by an appellate court when a case is appealed. The appellant's brief outlines the facts and issues of the case, the judge's rulings or jury's findings that should be reversed or modified, the applicable law, and the arguments on the client's behalf.

Arbitration clause

Summary jury trials (SJT)

A method of settling disputes, used in many federal courts, in which a trial is held, but the jury's verdict is not binding. The verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow the summary jury trial.

Online dispute resolution (ODR)

Ethics

Business ethics

Ethics in a business context; a consensus as to what constitutes right or wrong behavior in the world of business and the application of moral principles to situations that arise in a business setting.

Ethical reasoning

Categorical imperative

A concept developed by the philosopher Immanuel Kent as an ethical guideline for behavior. In deciding whether an action is right or wrong, or desirable or undesirable, a person should evaluate the action in terms of what would happen if everybody else in the same situation, or category, acted the same way.

Principle of rights

The principle that human beings have certain fundamental rights (to life, freedom, and the pursuit of happiness, for example). Those who adhere to this "rights theory" believe that a key factor in determining whether a business decision is ethical is how that decision affects the rights of various groups. These groups include the firm's owners, its employees, the consumers of its products or services, its suppliers, the community in which it does business, and society as a whole.

Utilitarianism

An approach to ethical reasoning that evaluates behavior in light of the consequences of that behavior for those who will be affected by it, rather than on the basis of any absolute ethical or moral values. In utilitarian reasoning, a "good" decision is one that results in the greatest good for the greatest number of people affected by the decision.

Moral minimum

Backdating

The practice of marking a document with a date that precedes the actual date. Persons who backdate stock options are picking a date when the stock was trading at a lower price than the date of the options grant.

Law

Jurisprudence

Natural law

The belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature. The natural law school is the oldest and one of the most significant schools of legal thought.

Historical school

Legal realism

A school of legal thought in the 1920s and 1930s that generally advocated a less abstract and more realistic approach to the law, an approach that takes into account customary practices and the circumstances in which transactions take place. This school left a lasting imprint on American jurisprudence.

Ordinance

Uniform law

A model law created by the National Conference of Commissioners on Uniform State Laws and/or the American Law Institute for the states to consider adopting. If a state adopts the law, it becomes statutory law in that state. Each state has the option of adopting or rejecting all or part of a uniform law.

Administrative law

Administrative agency

A federal or state government agency established to perform a specific function. Administrative agencies are authorized by legislative acts to make and enforce rules in order to administer and enforce the acts.

Executive agency

Independent regulatory agency

An administrative agency that is not considered part of the government's executive branch and is not subject to the authority of the president. Independent agency officials cannot be removed without cause.

Enabling legislation

Adjudicate

To render a judicial decision. In the administrative process, adjudication is the trial-like proceeding in which an administrative law judge hears and decides issues that arise when an administrative agency charges a person or a firm with violating a law or regulation enforced by the agency.

Administrative process

Rulemaking

The process undertaken by an administrative agency when formally adopting a new regulation or amending an old one. Rulemaking involves notifying the public of a proposed rule or change and receiving and considering the public's comments.

Stare decisis

Binding authority

Any source of law that a court must follow when deciding a case. Binding authorities include constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction.

Persuasive authority

Any legal authority or source of law that a court may look to for guidance but on which it need not rely in making its decision. Persuasive authorities include cases from other jurisdictions and secondary sources of law.

Civil law

Civil law system

A system of law derived from that of the Roman Empire and based on a code rather than case law; the predominant system of law in the nations of continental Europe and the nations that were once their colonies. In the United States, Louisiana, because of its historical ties to France, has in part a civil law system.

National law

International law

The law that governs relations among nations. National laws, customs, treaties, and international conferences and organizations are generally considered to be the most important sources of international law.

Voluntary Consent

Knowledge of, and genuine assent to, the terms of a contract. If a contract is formed as a result of a mistake, misrepresentation, undue influence, or duress, voluntary consent is lacking, and the contract will be voidable.

Intended Beneficiary

Incidental Beneficiary

A third party who incidentally benefits from a contract but whose benefit was not the reason the contract was formed; an incidental beneficiary has no rights in a contract and cannot sue to have the contract enforced.

Discharge

The termination of an obligation. In contract law, discharge occurs when the parties have fully performed their contractual obligations or when events, conduct of the parties, or operation of law releases the parties from performance

Anticipatory Repudiation

Mutual Recission

an agreement between the parties to cancel their contract, releasing the parties from further obligations under the contract. The object of the agreement is to restore the parties to the positions they would have occupied had no contract ever been formed.

Novation

The substitution, by agreement, of a new contract for an old one, with the rights under the old one being terminated. Typically, there is a substitution of a new person who is responsible for the contract and the removal of an original party's rights and duties under the contract.

Impossibility of Performance

Commercial Impracticability

a doctrine under which a court might excuse the parties from performing a contract when the performance becomes much more difficult or costly due to an event that the parties did not foresee or anticipate at the time the contract was made

Frustration of Purpose

A court-created doct, A court-created doctrine under which a party to a contract will be relieved of his or her duty to perform when the objective purpose for performance no longer exists (due to reasons beyond that party's control).